BUILDING A STRONG ETHICAL FOUNDATION IS KEY TO A FORFEITURE PROGRAM

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This is the second of three articles by Mike Perez, who is currently a senior manager at Grant Thornton, LLP. As manager of the Department of Justice Assets Forfeiture Fund for 20 years, and founder and director of the Justice Department’s Asset Forfeiture Management Staff for 13 years until his retirement in 2007, he was a strong advocate for ethical practices, professional property management, and aggressive cost management in the federal asset forfeiture program. He was a featured speaker at the Asset Forfeiture 2009 Global Conferencein Hollywood, Florida.

A strong ethical practice is essential to an aggressive asset forfeiture program. While there are solid public policy reasons for using the forfeiture sanction, we must always remember that law enforcement operates within an open society and our actions are constantly judged.
One or two serious failings will overshadow the benefits obtained from hundreds of cases in which all was done right.

That said, an unfortunate aspect of our society is a general lack of understanding of the asset forfeiture process and of the social benefits that can be achieved through its use. The idea of the government taking away people’s property rights, especially without a criminal conviction, strikes many as unconstitutional. If law enforcement fails to nurture public trust in how this sanction is used, we will face strong public pressure on federal, state and local officials to pare back or eliminate use of the asset forfeiture sanction. As is so often the case in human affairs, one or two serious failings will overshadow the benefits obtained from hundreds of cases in which all was done right.Code of conduct
In developing an asset forfeiture program, law enforcement agencies must avoid the appearance that seizure decisions are driven by corrupt or greedy motives, or that seized property and forfeiture funds are handled recklessly or with indifference toward correct practices. A great place to start is with the U.S. Department of Justice 10-point National Code of Professional Conduct for Asset Forfeiture. Copies of this code of conduct are available from the Asset Forfeiture and Money Laundering Section of the Justice Department’s Criminal Division. Key features include:

1. The code makes it clear that achieving law enforcement goals for the benefit of public safety or security is the principal objective of asset forfeiture. Potential revenue is not a valid reason to pursue forfeiture and is not an excuse to jeopardize ongoing investigations or the due process rights of citizens. The code recommends that all cases involving interests in real property be prosecuted through the courts to ensure an independent resolution of the government’s allegations. In cases where judicial proceedings are inappropriate, the code requires the seizure decision to be approved in writing by a prosecuting agency or a supervisory level official within the law enforcement agency. These features of the code are intended to ensure an objective review of the seizure decision.

2. The code provides that the employment or salary of prosecutors and sworn law enforcement officers shall not depend upon the level of seizures or forfeitures they achieve. If prosecutors and law enforcement officers are to make appropriate decisions based on legitimate law enforcement goals, we must shield them from a financial interest in the outcome of their decisions. If we are perceived by the public as officially sanctioned bounty hunters, we will have lost the moral authority of the law. In addition, if our officers are perceived as operating with questionable motives, the courts will treat their testimony as tainted.

3. The code requires that funds obtained through forfeiture be maintained in separate accounts, be subject to normal accounting controls over public monies, and be audited annually. This aspect of the code recognizes that forfeiture funds are public monies, and should be handled in the same way as appropriations and other public funds. These monies are not the personal property of prosecutors, sheriffs or chiefs of police. Using them in a manner inconsistent with the statutes and regulations of the host jurisdiction will subject the law enforcement agency and its personnel to charges of misuse, if not theft, of these funds. The code requires similar affirmative controls over forfeited property that is put to official use. Such forfeited vehicles, computers, etc., are property of the government, not the personal property of law enforcement personnel. Therefore, use of forfeited property should be subject to the same management and reporting requirements as property purchased with public monies.
Integrating these principles into the policies and procedures of an agency’s asset forfeiture program will create a proper regard for ethical standards in the development and execution of forfeiture cases, and in the management of forfeited assets.
If we are perceived by the public as officially sanctioned bounty hunters, we will have lost the moral authority of the law.

Managing forfeiture funds requires special attention. Improper use of these funds has created serious problems for law enforcement, from a lack of trust in the integrity of personnel to the need to replace misused funds from law enforcement operating budgets. It is extremely important to establish a strong system of internal controls over the approval and disbursement of forfeiture funds to ensure that all uses are consistent with law and policy, and to monitor the results obtained. Standard practices for management of public monies as separation of duties, annual audits, and aggressive monitoring of fund uses should be a part of this control system.Resisting political pressure
Law enforcement leadership must ensure that personnel responsible for forfeiture funds pay special attention to the statutes and policies that define and limit their authorized uses, and maintain appropriate official records to demonstrate that all uses of such funds comply with these directives. Forfeiture funds often have greater limits on their use than general appropriations available to law enforcement agencies. If a question arises regarding the propriety of a planned use of forfeiture funds, it should be resolved by a competent authority and documented before funds are committed to the proposed use. A strong focus on the legitimacy of each use will help officials withstand political pressures to use funds for worthy causes that fall outside the limits of authorized uses.

It is also recommended that law enforcement leadership develop an annual plan for use of forfeiture funds. The plan should identify and prioritize proposed uses and document the law enforcement benefits to be obtained. By establishing a well-reasoned structure for spending, the plan will serve as a benchmark for evaluating proposed uses of funds and impose discipline on the approval of fund uses. Finally, it is recommended that the annual plan as well as the actual use of forfeiture funds be published periodically to provide transparency for stakeholders outside the law enforcement agency and to the public.

Strong internal controls, a well-reasoned plan, and the transparency of fund use will dispel any cloud of secrecy around such funds, mitigate concerns that forfeiture funds are not appropriately controlled, and contribute to building trust in the integrity of the offices managing such funds.

As important as it is to establish this culture of strong ethical values, law enforcement leadership must also insist on solid competency in the performance of property management and control functions. If a law enforcement agency is unable to answer to the court, the legislature, or the public with respect to what property is under seizure, where it is kept, and its status, or is unable to produce property when required, or produces damaged or tainted property, the acceptability of the asset forfeiture program will suffer greatly. Many will assume that what may be the result of marginal competence is, in fact, the result of a lack of integrity.